Why we made this change

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The jury has now spoken. We applaud them for finding Samsung’s behavior willful and for sending a loud and clear message that stealing isn’t right …Today, values have won and I hope the whole world listens.

In the same memo he wrote that at Apple, “We value originality and innovation,” and referred to the decision as important “for innovators everywhere.” At best, that’s hyperbole. At worst, it’s downright toxic.

Why? Not just because our IP regime has grown overzealous to the point where it frequently serves to strangle innovation (although that’s true, too). But rather because casual remarks like this can reinforce the mistaken notion that people are, in general, entitled to ownership of their ideas. They’re not, and that’s a very good thing.

In reality, the rare idea that is eligible for protection through IP is the exception, not the rule. And, whatever the merits of the Apple/Samsung case, furthering the idea that copying an idea is, broadly speaking, bad—as I take Cook to be saying—is damaging to innovation overall.

You might argue that Cook’s comments were narrowly applicable to the case at hand, but I see them as part of a broader trend that I’ve called, with an eye toward The Social Network, “The age of the Winklevi.”

I first noticed it in the press coverage around a suit against the Huffington Post. The actual suit involved a breach of contract, with two consultants claiming that Huffington and her cofounders violated an agreement they’d made by handshake concerning the launch of the site.

That’s neither here nor there, except that the press coverage casually treated the matter as an allegation that Huffington had “stolen“ the idea for the Huffington Post. But that idea—a liberal website to match the Drudge Report with the addition of celebrity bloggers—is not an idea you can steal.

Our IP system is designed to protect only a very small subset of ideas. It grants patents for inventions that are novel, nonobvious, and useful, and protects the expression of ideas through copyright. But the default status for any old idea is that it cannot be owned by anyone. Here’s how legal scholar Lawrence Lessig puts it in his book The Future of Ideas:

… most of production in our society occurs without any guarantee of government protection. Starbucks didn’t get a government monopoly before it risked a great deal of capital to open coffee shops around the world. All it was assured was that people would have to pay for the coffee they sold; the idea of a high-quality coffee shop was free for others to take. Similarly, chip fabricators around the world invest billions in chip production plants, with no assurance from the government that another competitor won’t open a competing plant right next door. In each of these cases, and in the vast majority of cases in a free economy, one person’s great idea is open for others to take.

This kind of freedom of ideas is not only compatible with innovation and entrepreneurship, it’s essential to it. Contrary to Cook’s effort to claim the mantle of the innovator, any entrepreneur worth his or her salt knows that an idea is hardly as valuable as the ability to execute on it.

By the way, none of this is to say we can’t cultivate a culture of credit-giving. In fact, such a culture becomes easier to create when acknowledging copying doesn’t mean getting hit with a lawsuit.

The patent wars will continue to unfold around us, for better or worse. But we do have control over how we talk about them. All I ask is that we don’t let the rhetoric of ideas-as-property bleed out into the broader innovation culture. The fact is that we don’t to own most of our ideas, and that’s a good thing.

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